Supreme Court Says Kerala HC Erred In Fixing Cut-Off For Viva-Voce In 2017 District Judge Selection; Refrains From Unseating Selected Candidates

A Constitution Bench of the Supreme Court on Wednesday held as illegal the process followed by the Kerala High Court in fixing a cut-off mark on the basis of viva-voce for the selection of District Judges in March 2017. The Court noted that cut-off was fixed by the High Court after the conduct of the viva voce, which was "manifestly arbitrary".

The Supreme Court further noted that the provisions of the Kerala State Higher Judicial Services Special Rules, 1961 (the 1961 Rules) provided that aggregate of the written test and the viva voce would be taken into consideration for appointment. The exam scheme and the recruitment notification also did not stipulate any cut-off for viva-voce. Hence, the process was held to be "ultra-vires" the rules.

However, the Court refrained from invalidating the selection of candidates in view of the fact that six years have elapsed since their appointment, during which the appointed candidates have performed judicial functions. "Unseating them would be harsh and would result in a situation where higher judiciary would lose the services of duly qualified candidates who have gained experience over the last six years", the Court observed in the order.

At the same tame, in a succour to the petitioners, the Court clarified that their failure to get selected will not be treated as a reflection on their merit and that it will not come in their way in future selections.

A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha, Justice Hrishikesh Roy, Justice Pankaj Mithal and Justice Manoj Misra was hearing a batch of petitions filed by eleven candidates aspiring to be selected as District judges in the State of Kerala in pursuance of a  2015 notification. The Constitution Bench was hearing a reference on the issue whether appointing authorities can change the norms of selection during the middle of the process. The reference was made in view of conflicting judgments on the point "whether the rules of the game can be changed after the game has begun". The Kerala cases were also listed along with the main petitions in the reference. The bench did not address the referred issue in the Kerala cases, since they were capable of being decided on the basis of the provisions of the 1961 Rules.

The petitioners were represented by Advocate PV Dinesh, Advocate Haripriya Padmanabhan, Advocate Ragenth Basant, and Senior Advocate V Chitambaresh, assisted by Advocate-on-Record Lakshmeesh S Kamath. It was the argument of the petitioners that the selections for district judiciary were to be made in accordance with Rule 2(c)(iii) of the 1961 Rules as per which no cut off marks were to be set for the viva voce.

Selection Process as per the 1961 Rules

The 1961 Rules, framed under Articles 233 and 309 of Constitution of India, provide for the constitution of the service into three categories, namely, a) Supertime Scale; b) Selection Grade District and Sessions Judges and; c) District and Sessions Judges including Additional Judges. The dispute in the present case pertained to the third category, that is, District and Sessions Judges, the appointment of which is carried out as per Rule 2(c).

Rule 2(c)(iii) stipulates that 25% of the courts in the category of District and Sessions Judges including Additional Judges shall be filled by direct recruitment from the bar "on the basis of aggregate marks/grades obtained in the competitive examination and viva voce conducted by the High Court." 

Thus, the merit list created as per Rule 2(c)(iii) was required to be based on an aggregate of written examination and the viva voce. There was no provision for cut off marks to be applicable in viva voce for the purpose of preparing the merit list. 

Submissions of the Petitioners

While taking the court through the Rules of 1961, Advocate PV Dinesh argued that if the selection was made in accordance with Rule 2(c)(iii), the petitioners would have been selected as they had more aggregate marks than selected candidates. He stated that the fixing of cut-off marks was not informed to the petitioners and was carried out after the viva voce had already taken place. He also relied upon the findings of the Shetty Commission which had specified that there cannot be a cut-off for viva-voce. He further argued that the case of Tej Prakash Pathak & Ors v. Rajasthan High Court (2013) 4 SCC 540 would not be applicable in the present case as the issue in reference in the matter was different.

To his submissions, CJI DY Chandrachud remarked–

"One point in your favour and one point against you – I will put you both. Point in your favour is that the committee does not refer to Rule 2(c) at all. It seems to have missed that Rule 2(c) had provided for aggregate marks. That seems to be in your favour. One point against you now. If you are right, then, there could not have been the fixation of minimum marks in the written also. The fixation of minimum marks in the written exam did not come under Rule 2(c). It came under the notification of September 2015. Technically, if you are right, the High Court could not have even fixed minimum marks for even written exams. Because the rule was silent. Rule said that just aggregate both and draw up a merit list...There also there may be an answer which is that the fixation of minimum marks for the written which took place on 30 September 2015 was before the commencement of selection process"

"The administrative committee decision was much later, after the viva was done. Viva was in January", clarified Advocate Dinesh.

At this juncture, CJI Chandrachud attempted to explain the reasoning of the High Court and said –"When you sit in the selection committee, you are looking at the best interest of the institution. The motive is very very laudable. The question is whether it is lawful. Sometimes what happens is that the High Court thinks that look this is the crop which we are taking in the judiciary, that is what weighs with them."

To this, Senior Advocate Chitamberesh responded–

"The cream is to be included, no doubt but not after the event. They had the tabulated marks before them. See the favoured candidates, they got low marks in the written examination, jacked up by the viva. Please see the scheme of the examination which is very relevant."

Advocate Raghenth Basant, in his submissions, stated that the fixing of the cut off marks after the interview was contrary to not just the 1961 Rules, but also the Scheme framed by the Full Court and the notification issued by the High Court. He argued that the list of selected candidates was published on 06.03.17 and the writ petition was filed immediately after, on 05.04.17. Stating that the petitioners were vigilant in availing their legal remedy, he requested that if the Apex Court was to take a view that the action of the High Court was wrong, consequential relief must be granted to the Petitioners.

Advocate Haripriya Padmanabhan, who was also appearing for the petitioners argued that in all, only about 11 Petitioners were appearing before the Court and were all beyond 45 years of age. Therefore, the petitioners could no longer write the Judicial services exam. She stated that in the interest of justice, the petitioners ought to be appointed as District judges against the existing vacancies. Adding that they had lost out on an opportunity due to an illegality committed in the selection process and that no fault lied with them, Advocate Padmanabhan requested the bench to at least consider them for adhoc judges to be accommodated against other vacancies.

The submissions of the petitioners were also supported by the Union Government.

High Court's process contrary to Rules

After hearing the arguments of the petitioners, the bench expressed its inclination towards taking the view that the High Court decision was in the wrong.

CJI DY Chandrachud remarked–

"Rule 2(c)(3) specifically says that the selection will be made on the basis of the aggregate marks which are obtained in the written test and the viva. If that is applied, what you have basically done is that, forget the fact that the decision was taken midway through the selection process, we will leave that aside for a moment. What you did was that you said that by the full court decision, that the minimum cut-off which is been prescribed for the written exam should also be applied to the viva. As a result of this, what happens is that those who get eliminated on the ground that they have not got the minimum cut-off in the viva would have made it if the selection was made on the aggregate of marks in the written examination and the viva. In other words, what you have done is plainly contrary to Rule 2(c)(3)."

Justice PS Narasimha added–

"Four factors are clearly against you- 1. It is contrary to the rule; 2. The scheme specifically provided a distinct method which is to be followed and cut-off marks was not permissible; 3. The notification said that if there are overwhelming numbers, then we will only go by the number of years in the bar; 4. This decision of the administrative committee is actually after the interviews were over."

Aspirants No Longer Have Practical Knowledge, Only Train By Coaching: High Court of Kerala

Senior Advocate Dama Seshadri Naidu, appearing for the High Court of Kerala submitted–

"The problem is this that in the overall interest and the efficacy of the adjudication of the lower levels, the district levels, we had to take this step consciously, all the full court unanimously. But the difficulty is that a tendency has grown recently...Most of the aspirants never attend courts, never practice. They go to coaching institutions. They get trained and then they score really high in the examination. But when they face the viva voce, which tests a vital part of their practical knowledge, they are zero." 

However, the bench was not convinced with the argument. CJI DY Chandrachud said–

"Nobody is challenging the desirability of having cut-off of a minimum marks in the viva. But you must then specify it in the rule which you have subsequently done in 2017. The scheme specifically says that the shortlisting is made on the basis of years of practice in the bar if the number of the candidates is unusually large."

Decision of Kerala High Court ultra vires to Rule 2(c)(iii): Supreme Court

While holding the Kerala High Court's decision of adding cut off marks to the viva voce to be "manifestly arbitrary", the Supreme Court took into account that the Kerala High Court had published the scheme of the exam on December 13, 2012, which specifically provided that there shall be no cut off marks for the viva. Further, the notification which was issued by the High Court on September 30, 2015, for the conduct of ensuing exams provided that aggregate for written and viva would be the basis of merit list. Thus, the court held that principally, the modalities which have been followed by the High Court of Kerala for selections, were assailed on four grounds –

1. In specifying cut off for the viva voce, the High Court had acted in a manner contrary to the Rule 2(c)(iii) of the1961 Rules;

2. The scheme notified by the High Court had expressly provided that there shall be no cut off marks for the viva voce;

3. According to the notification issued by the High Court on September 30, 2015, the only criteria for the purpose of shortlisting candidates, would be the length of service rendered by the candidate at the bar which was to operate when the number of candidates was unusually large;

4. The full court decision to prescribe a cut off for the viva voce was notified much after viva voce was held as a consequence of which, candidates had no notice that such a requirement would be introduced at the inception of the process.

The court added–

"This is not the case where rules of High Court were silent. It is well settled that where statutory rules are silent, it can be supplanted by administrative order consistent with the objective of the Act. But here, it was clear that the merit list would be the aggregate of written and viva voce and clarified that there would be no cut off for the viva. We conclude that decision of the High Court was ultra vires the rules of 1961 and is manifestly arbitrary".

As regards the relief, the bench stated in the order :

"Having said this, question which now arises before the court is with regards the relief which can be granted to petitioners. The final list of successful candidates was issued on 6 March 2017. The candidates who have been selected would have now been working as district judges for about 6 years. In the meantime, all the petitioners before the court have not functioned in judicial office. At this lapse of time, it may be difficult to direct the unseating of the candidates who have performed their duties. Unseating them at this stage would be contrary to public interest since they had gained experience as judicial officers in the meantime. While the grievance of the petitioners is that if the aggregate of marks in written examination and viva voce was taken into account, they would have ranked higher, equally, we cannot lose sight of the fact that all the selected candidates are otherwise qualified for judicial office and have been working for a long period of time. Unseating them would be harsh and would result in a situation where higher judiciary would lose the services of duly qualified candidates who have gained experience over the last six years"

"For these reasons, we have come to the conclusion that it would not be possible to direct the induction of the petitioners to the high judicial services at the present stage. Many of the petitioners would have since joined the bar and would be in active practice. It needs to be clarified that their having failed to gain selections in the process which was initiated on 30 September 2015 is not a reflection either on their merits or abilities and shall not come in the way of them being considered for any other office, judicial or otherwise, in the future"

Case Title: Sivanandan CT and others vs High Court of Kerala W.P.(C) No. 229/2017, Fathimma Beevi M M And Ors. v. High Court Of Kerala W.P.(C) No. 379/2017 and Alphonsa John and others vs High Court of Kerala W.P.(C) No. 618/2017

Citation : 2023 LiveLaw (SC) 658; 2023 INSC 709

Click here to read the judgment